If You Brandish a Gun in Self-Defense in Kansas, You'd Best Shoot It

[A]fter leaving a bar in Emporia where [Brandon] Flint's fiancee and another man exchanged angry words, Flint walked to his car. Outside, Flint's fiancee and two men continued to talk in a heated fashion. Flint's fiancee fell to the ground during the scuffle. At this point, Flint got his gun, walked back across the street, and pointed the gun at the chest of one of the men; both men immediately backed away. Flint's fiancee got up, she and Flint walked back to Flint's car, and they drove away.

The State charged Flint with aggravated assault, and the jury convicted him. Flint requested an instruction for defense of another under K.S.A. 21-3211(a), but the district court denied his request, ruling Flint's use of force was greater than reasonably necessary to resist the attack....

Now at this point one might think there'd be a discussion of whether there was sufficient evidence that Flint reasonably thought that the fiancee was in danger of death, serious bodily injury, or the like, or merely was involved in a not very serious scuffle. Or one might think there'd be a discussion of whether at the point Flint pointed the gun, the fiancee was in continuing danger, or whether the men had already started to walk away. The discussion in the opinion suggests to me that there'd probably be enough of a factual question on the subject that the matter should be left to the jury, with a suitable defense-of-others instruction (unless no reasonable jury could find, beyond a reasonable doubt, that defense of others was justified, in which case Flint should have gotten a directed judgment of acquittal). But if the court had said that the facts revealed no reasonably perceptible threat of serious harm to the fiancee, I'd have been inclined to defer to the court's knowledge of the record.

But that's not what this case is about. Let's keep reading:

A majority of the Supreme Court held in [State v. Hendrix, 289 Kan. 859 (2009),] that K.S.A. 21-3211 created a defense of self or defense of another only when there is "use of force." The majority decided actual physical contact rather than a mere threat or display of force is necessary to raise this defense. Since Flint merely threatened the use of his gun and there was no actual force applied, he was not entitled to the defense of another.

Wow. Had Flint actually shot the gun, he would presumably have been entitled to have the jury consider his defense-of-others defense. (Such a defense would generally be roughly similar to a self-defense defense, and use of deadly force is generally allowed in self-defense against sufficiently serious threats.) But because Flint merely brandished the gun, he's a felon -- even if he reasonably believed that brandishing the gun was necessary to save his fiancee's life. That is simply absurd.

Here, by the way, is Judge Greene's concurrence:

I agree that the outcome here is controlled by State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (2009), but I write separately to note that the factual scenario in this case is very much like the hypothetical scenario depicted by Chief Justice Davis' dissent in Hendrix. The fact that Flint has been deprived of self-defense here demonstrates the wisdom of the Chief Justice Davis' dissent and the urgent need for a legislative fix of K.S.A. 21-3211.

(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force.

(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.

(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.

And the court concluded that while this allows self-defense that involves an actual attack on the attacker -- for instance, hitting, shooting, or stabbing the attacker -- it does not allow self-defense that merely involves a threat of violence against the attacker.

I think the dissent is right to say that "force" can reasonably be read as including "constructive force" such as threats, especially in light of the substantial American legal tradition of reading force this broadly (and despite the fact that other Kansas statutes generally do say "force or threat" or some such). And this is especially so because, as the dissent points out, the result is absurd: Restraint in the use of defensive violence is rewarded by criminal punishment. I believe courts should generally read statutes as written, but the should also read their terms against the backdrop of the legal rules that help define these terms, and principles such as the rule of lenity, and the presumption against readings that produce absurd results.

Moreover, note the implications of this ruling for neighboring sections: § 21-3215, for instance, provides that "A law enforcement officer, or any person whom such officer has summoned or directed to assist in making a lawful arrest, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. Such officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest and of any force which such officer reasonably believes to be necessary to defend the officer's self or another from bodily harm while making the arrest." Presumably then police officers remain criminally liable if they say "Stop, or I'll shoot!," though not when they actually actually shoot. Does that make sense?

But in any event, whether or not the Kansas Supreme Court rightly interpreted the statute, the Kansas Legislature should repair this problem as soon as possible. Likewise, pro-self-defense groups in Kansas should make sure that this is on the Legislature's docket.